United States v. Ivan Espinoza

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-1085
___________________________
Marvin Marcelino Garcia-Zelaya
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States of America
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: October 30, 2023
Filed: November 6, 2023
[Unpublished]
____________
Before ERICKSON, GRASZ, and KOBES, Circuit Judges.
____________
PER CURIAM.

-- 1 of 3 --

Salvadoran citizen Marvin Marcelino Garcia-Zelaya petitions for review of a
decision of the Board of Immigration Appeals upholding an immigration judge’s
denial of asylum and withholding of removal.1
Upon careful consideration of the petition and the record, we conclude that the
agency did not err in determining Garcia-Zelaya failed to establish membership in a
particular social group. See 8 U.S.C. §§ 1158(b)(1), 1231(b)(3)(A); Rosales-Reyes
v. Garland, 7 F.4th 755, 759 (8th Cir. 2021) (standard of review). The proposed
particular social group is not cognizable because it lacks social distinction and
particularity, and Garcia-Zelaya has offered no argument or evidence that would
compel a different result. See Pacheco-Mota v. Garland, No. 22-3651, 2023 WL
6857239, at *2 (8th Cir. Oct. 18, 2023) (witness to gang crime lacked social
distinction); Uriostegui-Teran v. Garland, 72 F.4th 852, 855-56 (8th Cir. 2023)
(rejecting “families of gang kidnapping and gang extortion victims” for lack of
particularity; groups were not limited to immediate family and lacked well-defined
boundaries); Miranda v. Sessions, 892 F.3d 940, 943 (8th Cir. 2018) (witness to gang
murder was insufficient to show petitioner was part of a socially distinct group; group
must be socially distinct within society in question); Constanza v. Holder, 647 F.3d
749, 753-54 (8th Cir. 2011) (petitioner’s membership in “a family that experienced
gang violence” lacked particularity); cf. United States v. Anwar, 880 F.3d 958, 971
(8th Cir. 2018) (one panel is bound by the decisions of earlier panels; only the court
sitting en banc has the authority to overrule a prior panel opinion).
Because the failure to establish membership in a cognizable particular social
group--or any other protected ground--was sufficient to render Garcia-Zelaya
1The denial of relief under the Convention Against Torture is not before this
panel. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004) (claim not
raised in opening brief is waived).
-2-

-- 2 of 3 --

ineligible for asylum or withholding of removal, we decline to address his other
arguments. See Uriostegui-Teran, 72 F.4th at 856.
The petition for review is denied. See 8th Cir. R. 47B.
______________________________
-3-

-- 3 of 3 --